The Cases of Council - Essay Example

Constitutional significance of two cases The cases of Council for the Civil Service Unions v Minister for the Civil service1 and that of R v Secretary of State for the Home Department2 are both notable in that they have raised the issues of exercise of prerogatives issued to the executive vis a vis the sovereignty of Parliament. Judicial review of the constitutionality of the actions of the respective Ministers in these cases, i.e, the Minister for Civil service and the Minister for Home, was taken up in order to assess the exercise of prerogative and delegated power. The Civil Service Unions case: This case concerned the members of the Government Communications headquarters (GCHQ), whose main function was to ensure the security of UK military and official communications. They were also allowed to become members of civil and national trade unions, but most action taken by these Unions were disruptive to the functioning of the GCHQ. The Minister, exercising her power under Article 4 of the Civil Service Order in Council 1982, issued instruction that GCHQ members were not permitted membership in other Unions. Appellants contended that the Minister had violated her duty to consult the employees and the lower Court riled in their favor, however the Minister appealed on grounds of supremacy of the prerogative in situations involving national risk. The significant Constitutional issue that arose in this case was the degree to which the royal prerogative could be applied. As Oxford Professor Dicey clarifies, the “prerogative is the name for the remaining portion of the crown’s original authority….whether such power be exercised by the King himself or by his Ministers.”3 The right of a Minister to exercise such a prerogative was upheld in the case of Attorney General v De Keyser’s Royal Hotel Ltd,4 especially in the context of a statute that had been passed by Parliament. In this case, it was held that once the existence of the prerogative was established, the Courts cannot question the exercise of that power. However, Lord Denning in the case of Laker Airways Ltd v depot of Trade5 qualified the constitutional exercise of prerogative powers as follows: “The law does not interfere with the proper exercise of the discretion by the executive in those situations; but it can set limits by defining the bounds of the activity; and it can intervene if the discretion is exercised improperly or mistakenly.” The decision in the case of Council of Civil Service Unions6 held that the Minister’s exercise of the prerogative was valid since the employees of GCHQ were involved in matters involving national security. However, Lord Denning has clarified in the state of R v Secretary of State for the Home Depot7 when there are no matters of national security involved, “….if the body concerned, whether it be a Minister or advisors, has acted unfairly, then the Courts can review their proceedings so as to ensure, as far as may be, that justice is done.” The duty to consult was also another issue that came to the fore in the Council of Civil Service Unions case, since this raises the issue of individual fundamental rights vis a vis the supremacy of the constitutional Crown prerogative. In reference to the established practice at GCHQ of consultation with employees before any significant changes in practice, the Court clarified that this would have been a reasonable expectation on the part of the employees, if the issue of national security had not been an overriding concern in this case. The question of “reasonable” expectations had already been established in cases such as R v Prison Board of Visitors.8 The significance of the Council case lies in the fact that it establishes the supremacy of the prerogative even in cases of exercise of a delegated power, where there are issues of national security at stake. The Minister action in declaring that members of GCHQ could not be members of other unions was deemed to be a lawful act. The case of the Fire Brigades Union9 is also significant in that it concerns the exercise of a crown prerogative, however in this case, the Home Minister’s exercise of such prerogative was deemed to be unlawful. The Fire Brigades Union and other appellants filed suit for judicial review when certain statues that spelt out ex gratia payments for compensation due to criminal injuries had been laid out under the criminal Justice Act, but were not executed by the Home Minister through the order on the statute he was required to pass. Rather, the Minister decided to introduce a completely new scheme of compensation based upon a tariff scheme that did not take into account the individual circumstances of a particular case. The Appellants pleaded for a declaration that the Minister’s act was unlawful and a violation of his prerogative, since it conflicted with the expression intention of Parliament that had been set out under the relevant sections of the criminal Justice Bill of 1988. The DeKeyser principle had questioned whether an executive can claim a prerogative power in order to justify a particular decision when that decision has been shown to be inconsistent with the statutory law. In examining the relevance of the De Keyser case10 in the context of the Minister’s declaration of the Tariff scheme, Sir Thomas Bingham was of the opinion that it was not relevant, since the issues in this case related to statues that had not yet been passed, therefore lawfulness of actions that rise in violation of such statues could not be considered. The major issue in this case was to determine whether the Minister’s exercise of prerogative in a manner inconsistent with parliamentary will could be allowed to stand. Since Parliamentary Sovereignty is the law of the land11 it was contended that the Minister had acted unlawfully in exercising his prerogative in brining into force statutory provisions that did not comply with the specifications for ex gratia compensation payment approved by both Houses of Parliament. Although the statute had not been legally implemented through the order that the Minister had to pass, nevertheless the Court held that since the provisions of the relevant sections of the Criminal Justice Act of 1988 remained unrepealed, the Minister did not have the statutory prerogative to over ride those provisions and introduce a new scheme. In this case, therefore, the result was that the Minister’s action to exercise his prerogative was declared unlawful. It may be noted that there was issue of national security at stake in this instance, therefore the fundamental rights of the employees of the Unions assumed a greater importance. However, both these cases establish that the degree to which the crown prerogative may be lawfully exercised in the case of delegated powers that emanate from prerogative power is not automatically exempt from judicial review. The factor that will determine the scope of such delegated power and whether they can be subjected to judicial review will depend largely upon the justiciability of the subject matter rather than merely taking into account the source of such prerogative power, as also established in the cases of R v Criminal Injuries Board ex parte Lain12 and R v Secretay of State for the Home Dept, ex parte Hosenball.13 Judicial review of the constitutional prerogative can occur in some cases. Bibliography * Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 * Council of Civil Service Unions and Others v Minister for the Civil service (1984) 3 All ER 935 * Dicey, A.V. (1915) “Law of the Constitution” 8th edition, 1914. Oxford: Oxford University Press, pp 421. * Laker Airways Ltd v Dept of Trade [1977] 2 All ER 182 at 192, [1977] QB 643 at 705 * R v Secretary of State for the Home Depot, ex parte Hosenball (1977) 3 All ER 452 * R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others (1995) 1 All ER 888 * R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770 * R v Secretary of State for the Home Dept, ex p Hosenball [1977] 3 All ER 452 * R v Prison Board of Visitors, ex parte St Germain (1979) 1 All ER 701 Read More